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P. v. Portades CA1/4

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P. v. Portades CA1/4
By
10:30:2018

Filed 8/22/18 P. v. Portades CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

JOVANY SHAWNTE PORTADES,

Defendant and Appellant.

A147088

(Solano County

Super. Ct. No. VCR22117)

A jury convicted appellant Jovany Shawnte Portades of burglary (Pen. Code,[1] § 459) and receiving stolen property (§ 496, subd. (d)). The trial court found that appellant had one prior prison term (§ 667.5, subd. (b)) and sentenced him to seven years in state prison.[2] Appellant contends the prosecutor committed prejudicial misconduct during closing argument by referring to facts not in evidence. We affirm.

I. FACTS

In June 2014, Peter Corelis, his wife Wendy, and their two children lived in Vallejo, California.

On June 23, 2014, Mr. and Mrs. Corelis came home to find several men inside their residence. Mrs. Corelis was the first one in the house. When she saw the men, she ran out of the house screaming and saying there were people in the house. Mr. Corelis then saw three or four people running out of the house. One man was Hispanic, with a distinctive hair style; most of his head was shaved, but he had long hair in the back.

The fleeing men carried items from the home, including a large desktop computer, a PlayStation, and a large glass container filled with loose change. They ran to a black Suburban that had been stolen earlier in the day and drove away. Video surveillance from a neighbor’s house also depicted several men fleeing the Corelis’s home and running toward a Suburban.

As the men were leaving the house, Mr. and Mrs. Corelis ran to their car and drove away to find a safe location from which to call 911. Mr. Corelis gave a description of the Suburban to the dispatcher.

Shortly thereafter, Vallejo Police Officer Jim Melville spotted the vehicle. When he flashed the overhead lights of his patrol car, the vehicle fled. As Officer Melville pursued the vehicle, co-defendant Santiago Portades threw a book of checks belonging to Mrs. Corelis out the window. After a few minutes, the vehicle stopped. Officers detained the occupants—appellant and his two co-defendants—and searched the vehicle.

Mr. Corelis was brought to the scene of the stop and identified appellant as the Hispanic man with long hair who came out of his house. Mr. Corelis did not recognize the other two men. He identified a number of items of property from his home that were found in the Suburban, including the glass container containing loose change, the PlayStation, an external hard drive, his wife’s laptop, several tote bags, and checks from his and his wife’s bank accounts.

II. DISCUSSION

Appellant claims prosecutorial misconduct based on a single statement by the prosecutor during closing argument: that Mrs. Corelis did not testify at trial because she lived over 800 miles and two states away. Appellant argues that the statement included facts not in evidence, which constituted prejudicial misconduct requiring reversal.

During trial, Mr. Corelis explained that he had moved to Washington state in January 2015. Although the prosecutor elicited evidence that the entire family lived in one home in Vallejo, the prosecutor did not ask whether Mr. Corelis’s family accompanied him to Washington or where his wife and children resided at the time of trial.

During closing argument, the prosecutor asserted: “The second part of the defense is blame others. You’re going to hear probably about blaming Mr. Corelis, he didn’t pay attention enough, he didn’t do enough of a thorough job trying to identity these guys as he’s trying to protect his family and children and get out of that area. They may even blame Mrs. Corelis for not coming here to testify across two states and 800 miles with her children.”

Counsel for co-defendant Pierce objected, asserting, “that’s not in evidence.”

The court then admonished the jury as follows: “Actually, I don’t remember the specific[s]. So again, you are to decide what the evidence actually showed and, again, attorneys making arguments, but you’re to—if there’s any doubt about whether or not evidence is actually there, you need to go back and test your own notices or recollection or the court reporter’s transcript because what was stated by witnesses and physical evidence. That is what you’re to consider.”

During a break, counsel for co-defendant Pierce reiterated that the prosecutor had “argued to the jury that witness that was not here was two states away and made some comment when clearly that evidence was not brought out during the trial.” Although the court acknowledged that “technically” Mr. Corelis did not testify about his wife, it observed that it was a “pretty tangental issue.”

“We review claims of prosecutorial misconduct pursuant to a settled standard. ‘Under California law, a prosecutor commits reversible misconduct if he or she makes use of “deceptive or reprehensible methods” when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. [Citation.] Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant’s specific constitutional rights—such as a comment upon the defendant’s invocation of the right to remain silent—but is otherwise worthy of condemnation, is not a constitutional violation unless the challenged action “ ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” ’ [Citations.]” (People v. Dykes (2009) 46 Cal.4th 731, 760.) “As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]” (People v. Samayoa (1997) 15 Cal.4th 795, 841.)

Although counsel for co-defendant objected, defense counsel for appellant did not object to the prosecutor’s closing argument. And, neither counsel objected on the grounds of prosecutorial misconduct. Thus, appellant forfeited his argument of prosecutorial misconduct. However, even assuming this claim had been preserved, it fails on the merits.

It is prosecutorial misconduct for a prosecutor to refer to purported facts that are not in evidence. (People v. Hill (1998) 17 Cal.4th 800, 828.) “ ‘It has been recognized that such testimony, “although worthless as a matter of law, can be ‘dynamite’ to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence.” ’ ” (Ibid.)

For this reason, it is improper for a prosecutor to imply to a jury that his or her opinion of the defendant’s guilt is based on information not revealed in court. The isolated remark by the prosecutor did not present a risk of making such an improper suggestion to the jury. As the trial court noted, Mrs. Corelis’s presence or absence from trial was a “pretty tangental issue.” (See People v. Lopez (2013) 56 Cal.4th 1028, 1073 [“The remarks in question were fleeting and rather obscure. Even if they constituted misconduct, they do not constitute the type of deceptive and reprehensible methods that require reversal”], overruled on another ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216; People v. Dykes, supra, 46 Cal.4th at pp. 771–772 [“even if the comment was inappropriate, it constituted a mere passing reference of no real import to the case”].)

Moreover, although Mr. Corelis did not specifically testify that he lived in Washington with his wife and children, such an inference was reasonable based on his testimony. “ ‘Prosecutors have wide latitude to discuss and draw inferences from the evidence at trial.’ [Citation.] ‘Whether the inferences the prosecutor draws are reasonable is for the jury to decide.’ [Citation.]” (People v. Farnam (2002) 28 Cal.4th 107, 169.) The evidence provided a basis for the prosecutor to infer that Mrs. Corelis lived in Washington given that Mr. Corelis said he lived in Washington and there was no evidence to suggest Mrs. Corelis no longer lived with him. Drawing a legitimate inference based on the evidence is not misconduct. (See People v. Valdez (2004) 32 Cal.4th 73, 134 [no misconduct where “the prosecutor’s comments did not mischaracterize or assume facts not in evidence, but merely commented on the evidence and made permissible inferences”].)

Here, the jurors were admonished immediately that they were responsible for deciding the facts and that arguments by the attorneys were not evidence. They had been given that same instruction at the start of the trial, during the reading of the jury instructions, and in the written instructions. “The court’s instructions, not the prosecutor’s argument, are determinative, for ‘[w]e presume that jurors treat the court’s instructions as a statement of the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.’ [Citation.]” (People v. Mayfield (1993) 5 Cal.4th 142, 179.) Given the instructions, and viewing the prosecutor’s arguments as a whole, we see no “reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (People v. Samayoa, supra, 15 Cal.4th at p. 841.) Similarly, we see no reasonable probability that appellant would have been acquitted in whole or in part had the prosecutor not referred to the evidence in closing argument. Additionally, nothing in the record suggests that the isolated comment so infected the trial with unfairness as to make the resulting conviction a denial of due process.

III. DISPOSITION

The judgment is affirmed.

_________________________

REARDON, J.

We concur:

_________________________

STREETER, ACTING P. J.

_________________________

SMITH, J.*

*Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

A147088 People v. Portades


[1] All further undesignated statutory references are to the Penal Code.

[2] Appellant was tried with co-defendants Santiago Portades and James Pierce.





Description A jury convicted appellant Jovany Shawnte Portades of burglary (Pen. Code, § 459) and receiving stolen property (§ 496, subd. (d)). The trial court found that appellant had one prior prison term (§ 667.5, subd. (b)) and sentenced him to seven years in state prison. Appellant contends the prosecutor committed prejudicial misconduct during closing argument by referring to facts not in evidence. We affirm.
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